(BREAKING NEWS — OP-ED) — The author of this post does not posit legal advice here. It’s is food for thought for your own educational value!
Honolulu … Gary Victor Dubin has done it again! This time, it’s a rehash of the Reyes-Toledo case “perfected”!
I know it’s a week old case, but it’s worth the commentary because of something the Hawaii Supreme Court basically told the U.S. Supreme Court (who basically came up with their own “plausibility” pleadings scenario when they ruled in Bell Atlantic Corporation v. Twombly and Ashcroft v. Iqbal. It basically gave attorneys that represent the banks the opportunity to get 12(b)(6) dismissals of foreclosure cases simply by removing them to federal court and citing the two foregoing cases, which basically … in layman’s terms … requires a pleading to contain facts that are totally “fact”, enough to substantially prove their case. That also meant (in Hawaii) that their “Notice” pleadings weren’t sufficient. In the foregoing ruling, the Hawaii Supremes said otherwise! That is significant for homeowners living in Aloha because the judicial foreclosures commenced there (because Hawaii is a mortgage state) get to review cases that have minimal allegations instead of having to write a non-fictional “book” every time an attorney had to answer or file a complaint to shut down the other side’s foreclosure attack.
In the foregoing instance, the Hawaii Supremes told the Hawaii Appellate Court and the Circuit Court, “You BOTH got it wrong!”
First, understand that the entire merger scenario presented by Bank of America, N.A. is false. It did NOT happen that way. Every time Countrywide Home Loans is mentioned (in any form), Bank of America conveniently neglected to mention Red Oak Capital or any other entity involved in the actual acquisition of Countrywide Home Loans, Inc. That in of itself is false and misrepresentative and Bank of America had to have relied on an Assignment of Mortgage that was “manufactured” to create standing in order to bring its claim in the first place! Therefore, B of A’s attorneys should be brought up on charges to the Hawaii Bar and either get heavily sanctioned for wasting the Court’s time or face disbarment for committing repeated ethical violations! Yes, Hawaii does have “Misconduct” as a section in its Rules of Professional Conduct that mirror the ABA’s own set of rules.
Page 3 of this 44-page Ruling clearly cites how the Appellate Court applied the “plausibility” standard set by the U.S. Supreme Court, when in fact, Hawaii has its own set of pleading standards! Page 4 at Paragraph 2 REJECTS the plausibility standard. If this doesn’t send a clear message to all of the Circuit Court justices in Hawaii, nothing will. In fact, this Ruling should be shoved up every one of their asses until they “get it”! Otherwise, the system of things could see to it that each county in the State of Hawaii “pays dearly” out of its own coffers and each circuit judge is removed from the bench. This is why we have Appellate Courts (because Circuit Judges do not always, in fact almost always, DON’T DO THE RIGHT THING!) and in this case, the Appellates applied the wrong standard as well.
As to where MERS is concerned … I don’t believe that any Court in the land has been tasked with having MERS and its representatives answer to HOW an agency relationship was established and HOW MERS had any right to transfer a mortgage loan, given the fact that on its own website (owned now by ICE), MERS declares that it has no interest in loans and doesn’t take any monthly payments. Only one judge in Florida (that I am aware of) did the RIGHT THING in knocking out a servicer’s phony document from the land records because MERS never gave any rights to HSBC Bank USA N.A.! How then can MERS transfer interests it doesn’t have? It’s the phony document scam again. It always has been. And the banks’ attorneys keep relying on these phony documents to foreclose and no one does the right thing to expose the document for what it is and hold the attorneys liable.
You see, great discovery is like an enema. It’s supposed to help flush out the shit! Can I be any more succinct than that?
The problem is, MERS hardly answers any of the discovery propounded against it. And now that MERS is owned lock, stock and server by the parent company of the New York Stock Exchange, how much of a conflict of interest is there in our court systems now?!?!?!?!?!?!?!?!? MERS and its counsel seemingly don’t believe they have to answer any of the discovery served upon it. If it does, it’s with an objection. Homeowners would rather waste thousands of dollars plying discovery on MERS rather than go after the notary and the executor(s) of the phony document that contains the false representations the bank’s attorneys keep relying on! It’s no wonder they’re losing! Sadly, in one particular case I’m personally aware of, an attorney was paid $6,000 (by his client) to take the depositions of a notary and a robosigner that clearly lied on the assignment … and he took the money and spent it and did nothing. In fact, the attorney didn’t even plead the phony document was phony! When you have homeowner’s attorneys that can’t or won’t do their jobs properly, you wonder how homeowners are getting wins at all!
Such was the case in Alabama. The attached case made its way to the 11th Circuit Court of Appeals.
Needless to say, the attorney for the homeowners in this case is in real trouble! To my personal knowledge, this is not the first case he’s had that has been mishandled or improperly filed. (Let’s see what the 11th Circuit does!)
The foregoing represents a sheer waste of homeowner money and resources. The foregoing represents a delay game gone wrong. The foregoing represents clear attorney misconduct. The foregoing represents an opportunity for a federal appellate court to really mete out a severe punishment hefty enough to put the attorney out of business for good without even having to bring him on on State Bar ethical violations!
The irony of the fact that both cases involve Bank of America NA … and they ended up with different results.
The system of things worked superbly in one instance … and clearly failed in the other. Ah, the “learning curve” we all must face. At least the Hawaii Supreme Court appears to have its stuff straight!
For those dealing in Bank of America merger issues, it’s all going to be about the assignments and all of the false and misleading statements contained within them! Chase isn’t much better with its self-dealing assignments. Sadly, title companies and the U.S. government are all “in bed” with them. This is what happens when we move away from the truth and the liars are allowed to get away with it. They get arrogant and believe they can keep doing the same thing over and over again.
History Repeats Itself … get ready for another round of subprime mortgage lending … a New York attorney just sent me the linked article. Read it and weep.
SUBPRIME MORTGAGE LOANS BACK ON MARKET …
Listen to Dave Krieger on City Spotlight – Special Edition on WKDW-FM, 97.5 FM, every Friday night at 6:00 p.m. Eastern. This week, Dave will be discussing the attached article with co-host, R. J. Malloy (retired attorney and former Clerk to a U.S. District Court judge), along with Jacob Gil regarding Florida’s Amendment 2 campaign. If attorneys and judges are listening to Dave’s show, you should too! In fact, over 7,000 listeners dial us up every week on kdwradio.com from all over the globe! Knowledge is power!